State v. Decker

• Decision Date: 07 July 1993
• Docket Number: C-920525,Nos. C-920524,s. C-920524
• Parties: The STATE of Ohio, Appellee, v. DECKER, Appellant.
• Court: Ohio Court of Appeals

Page 544

88 Ohio App.3d 544

624 N.E.2d 350

The STATE of Ohio, Appellee, v. DECKER, Appellant.

Nos. C-920524, C-920525.

Court of Appeals of Ohio, First District, Hamilton County.

Decided July 7, 1993.

Joseph T. Deters, Hamilton County Pros. Atty., and Stephen J. Wenke, Asst. Pros. Atty., Cincinnati, for appellee.

Herbert E. Freeman, Cincinnati, for appellant.

DOAN, Presiding Judge.

Defendant-appellant John L. Decker was charged with several crimes in two separate indictments. In case No. B-905610, Decker was charged with two counts of gross sexual imposition in violation of R.C. 2907.05. In case No. B-915233, Decker was charged with one count of rape in violation of R.C. 2907.02, one count of sexual battery in violation of R.C. 2907.03, and four counts of gross sexual imposition in violation of R.C. 2907.05. Prior to trial, counts five and six in case No. B-915233, which charged Decker with gross sexual imposition involving his daughter, were dismissed. The remaining counts proceeded to trial before a jury. The jury returned not-guilty verdicts on counts one and two in case No. B-915233, which charged Decker with rape and sexual battery involving his son Danny. However, the jury found Decker guilty of gross sexual imposition as charged in counts three and four in case No. B-915233 involving Danny, and as charged in counts one and two in case No. B-905610 involving two different girls. The trial court imposed a sentence of two years on each count in case No. B-905610 to be served consecutively, and two years on each count in case No. B-915233 to be served concurrently with each other and concurrently with the sentences in case No. B-905610. Decker then filed these appeals.

In each appeal, Decker raises two assignments of error. In these assignments of error, Decker alleges that the trial court erred in failing to grant his motion for separate trials for each indictment, and that his convictions are against the manifest weight of the evidence. These assignments of error are without merit and, therefore, the judgments of the trial court are affirmed.

In case No. B-905610, Decker was convicted on two counts of gross sexual imposition. The facts surrounding these offenses are as follows. On July 19, 1990, several children were at Decker's house watching television in the afternoon. While the children were watching television, Decker was in his bedroom lying down. At some point, Decker called two seven-year-old girls into his bedroom and asked them to close the door. He asked them to rub cocoa lotion over his body to help relieve the pain of a sunburn. Decker told the girls to rub the lotion on his penis, which they did. He then ejaculated.

Decker denied the accusations of the two girls. He stated that he had been sleeping and that the girls had asked if they could rub the cocoa lotion on his body. He permitted them to rub the lotion on his body because he was still "half" asleep. Decker's common-law wife testified that she had been in the bedroom during this alleged incident, that the girls had asked if they could rub the lotion on Decker's body, and that she had retrieved the lotion from the bathroom for the girls. Both Decker and his wife denied that the girls ever touched Decker's penis.

In case No. B-915233, Decker was convicted on two counts of gross sexual imposition. The facts surrounding these offenses are as follows. In 1985, Decker was living with his first wife and their two children. At that time, Decker's son Danny was five years old. Danny stated that in the latter half of 1985, his father touched Danny's penis on several occasions, and that his father forced him to touch his father's penis on several occasions.

Decker denied his son's accusations. He then stated that his ex-wife and her boyfriend had indicated that they would ruin his life.

In the first assignment of error in each of his appeals, Decker asserts that the trial court erred in denying his motion for a severance of the indictments. At the trial level, Decker was represented by separate counsel for each indictment. Defense counsel on both indictments moved for separate trials on several occasions, including prior to trial and at the close of the prosecution's case. The trial court denied the motions every time that they were raised.

As the Supreme Court of Ohio stated in State v. Thomas (1980), 61 Ohio St.2d 223, 15 O.O.3d 234, 400 N.E.2d 401, joinder and the avoidance of multiple trials are favored for several reasons, including conserving time and expense, diminishing the inconvenience to witnesses, and minimizing the possibility of incongruous results in successive trials before different juries. Therefore, to prevail on a claim that the trial court erred in refusing to allow separate trials on different charges, an accused must affirmatively demonstrate "(1) that his rights were prejudiced, (2) that at the time of the motion to sever he provided the trial court with sufficient information so that it could weigh the considerations favoring joinder against the defendant's right to a fair trial, and (3) that given the information provided to the court, it abused its discretion in refusing to separate the charges for trial." State v. Schaim (1992), 65 Ohio St.3d 51, 59, 600 N.E.2d 661, 668, citing State v. Torres (1981), 66 Ohio St.2d 340, 20 O.O.3d 313, 421 N.E.2d 1288, syllabus.

To determine whether an accused has been prejudiced by the joinder of multiple offenses, a court must first determine (1) whether evidence of the other crimes would be admissible even if the counts were severed, and (2) if not, whether the evidence of each crime is simple and distinct. Schaim, supra, 65 Ohio St.3d at 59, 600 N.E.2d at 669, citing State v. Hamblin (1988), 37 Ohio St.3d 153, 158-159, 524 N.E.2d 476, 481-482; Drew v. United States (C.A.D.C.1964), 331 F.2d 85.

The admissibility of other-acts evidence is carefully limited, particularly in prosecutions for sexual offenses. See State v. Curry (1975), 43 Ohio St.2d 66, 72 O.O.2d 37, 330 N.E.2d 720. Both the rape statute and the gross sexual imposition statute contain subsections that limit the admissibility of evidence of other sexual activity by the defendant. R.C. 2907.02(D) and 2907.05(D) provide:

"Evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim, or is admissible against the defendant under section 2945.59 of the Revised Code, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value."

R.C. 2945.59 provides:

"In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior to subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant."

Evidence of Decker's "other acts" as charged in the separate indictments would not have been admissible if these trials had been separated. Decker was charged with gross sexual imposition involving two young girls in case No. B-905610 for forcing them to rub cocoa lotion on his penis until he ejaculated. He was charged with rape and sexual battery for allegedly engaging in anal intercourse with his young son, and with gross sexual imposition for fondling his son's penis and for having his son fondle his penis in case No. B-915233. Decker denied his involvement in these acts completely. Therefore, Decker's "motive or intent, the absence of mistake or accident on his part, or [his] scheme, plan, or system in doing an act" was not material. See R.C. 2945.59. Furthermore, the "other acts" did not have "such a temporal, modal and situational relationship with the acts constituting the crime charged that evidence of the other acts discloses purposeful action in the commission of the offense in question." State v. Burson (1974), 38 Ohio St.2d 157, 159, 67 O.O.2d 174, 175, 311 N.E.2d 526, 529. Evidence of Decker's "other acts" would not have been admissible in separate trials because it would have been offered merely to prove Decker's character in order to show that he acted in conformity therewith. See Evid.R. 404(B). Evidence of the alleged crimes against the two young girls would not have been admissible in a separate trial on the charges involving Decker's son; and evidence of the alleged crimes against Decker's son would not have been admissible in a separate trial on the charges involving the two young girls.

The Supreme Court of Ohio has written a specific two-prong test to determine whether an accused's right to a fair trial has been prejudiced by the joinder of offenses for trial. See Schaim, supra. Under that test, even though the joinder for trial of the charges in the two indictments returned against Decker allowed the jury to consider evidence that would not have been admissible if the charges had been severed for trial under the first prong, joinder of the indictments for trial was appropriate if the evidence of the crimes under each indictment was "simple and distinct" under the second prong. See Schaim, supra.

The crimes charged against Decker in the different indictments are indeed simple and distinct. Case No. B-905610 involved allegations from two girls living in Decker's neighborhood that Decker had asked them to rub cocoa lotion on his penis. Case No. B-915233 involved...